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Morgan v. Bottom

United States District Court, E.D. Kentucky, Central Division, Lexington

August 13, 2014

JOHNNY D. MORGAN, Petitioner,
v.
DON BOTTOM, WARDEN, Respondent.

MEMORANDUM OPINION AND ORDER

JOSEPH M. HOOD, District Judge.

Johnny D. Morgan is an inmate confined at the Northpoint Training Center in Burgin, Kentucky. Proceeding without an attorney, Morgan has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1]

I

On or about April 26, 2011, officers of the Laurel County Police Department arrested Morgan and his spouse Brittany Morris in London, Kentucky, for manufacturing methamphetamine in a garage. On October 28, 2011, Morgan was convicted in the Circuit Court of Laurel County, Kentucky, of Manufacturing Methamphetamine - First Offense, and Bail Jumping in the First Degree, and was sentenced to a cumulative twenty-year term of incarceration in Commonwealth v. Morgan, No. 11-CR-0098-003 (Cir. Ct. Laurel Co. 2011). The full term expiration date of Morgan's state sentence is April 11, 2031, see http://apps.corrections.ky.gov/KOOL/Details/113695, which indicates that the Kentucky Department of Corrections has given Morgan pre-sentence custody credit from April 11, 2011, (twenty years before his full term expiration date) through the date of his conviction and sentencing. Morgan first becomes eligible for parole from his state sentence on April 12, 2015. Id.

On December 14, 2011, a federal grand jury in Lexington, Kentucky handed down an indictment charging Morgan with conspiracy to manufacture and manufacture of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 846. On January 10, 2012, Morgan was taken into federal custody pursuant to a writ of habeas corpus ad prosequendum for his arraignment on the federal charges, and remained in federal custody until his November 8, 2012, sentencing pursuant to a written plea agreement. On November 15, 2012, the Court entered a judgment sentencing Morgan to a 51-month term of incarceration to be served concurrently with his pre-existing state sentence. United States v. Morgan, No. 6:11-CR-82-GFVT-HAI (E. D. Ky. 2011). Following imposition of his federal sentence, Morgan sent three letters to federal officials - including one to Ike Eichenlaub, the Bureau of Prisons ("BOP")'s Director of the Mid-Atlantic Region, regarding the computation of his federal sentence. Each of the letters, dated November 12, 2013; May 1, 2014; and June 17, 2014, evidenced Morgan's belief that he was entitled to credit against his federal sentence under the Bureau of Prisons' Residential Drug Abuse Program ("RDAP") because he had completed a similar program operated by the Kentucky Department of Corrections, the Substance Abuse Program ("SAP"). [R. 47, 48, 49 therein]

In his petition, Morgan states that the purpose of his petition is to:

Reflect the Jail-Time Credit from my date of arrest, to my date of sentence, or in the alternitive, to reflect my Jail Time Credit from the date of my State Sentence until my Federal Sentence. Specificly, from April 26, 2011, when I was arrested until my Federal Sentence started on November 8, 2012. Or in the alternative, from my state sentencing date of October 28, 2011 (when the Federal Datainer was applied), until November 8, 2012 when my Federal sentence began.

[R. 1, p. 8]

II

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.App'x 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Morgan's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the petitioner's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

The Court must deny Morgan's petition for both procedural and substantive reasons. First, Morgan is still in the custody of the Commonwealth of Kentucky serving his state sentence, and the BOP need not and does not make calculations regarding the conclusion of a federal sentence until a prisoner comes into federal custody to commence serving it. In addition, because Morgan is not in the legal custody of any federal official with authority to affect his federal sentence, the Court lacks habeas jurisdiction to entertain a challenge regarding its implementation. As this Court has previously explained in a similar context:

[P]ermitting such a challenge prior to the [state] prisoner's receipt into federal custody presents significant jurisdictional and venue problems. The Court's Section 2241 habeas jurisdiction is limited to challenges to the BOP's implementation or calculation of a federal prisoner's sentence. However, the BOP cannot be said to be implementing or executing a prisoner's sentence until that prisoner is received into federal custody to "commence" his or her federal sentence within the meaning of 18 U.S.C. § 3585(a). Until that time, the BOP has yet to make any firm or binding determinations regarding the circumstances of the prisoner's confinement.
Even if this were not so, habeas jurisdiction to challenge the BOP's actions would not exist until the prisoner was transferred into federal custody, as "[a]bsent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ." Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988) (no habeas jurisdiction exists to challenge INS detainer filed with federal prison, which merely notified federal prison officials that INS would make a decision regarding petitioner's status at some future date). Because Simms was not in federal custody when he filed his petition in this case, the Court lacks habeas jurisdiction to entertain it. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (federal habeas statute requires that petitioner be in custody "under the conviction or sentence under attack at the time his petition is filed.") (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).FN1
FN1. While the Maleng Court noted that habeas jurisdiction exists to challenge "future confinement" under Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89 (1973) and Peyton v. Rowe, 391 U.S. 54, 67 (1968), in Prieto v. Gluch, 913 F.2d 1159, 1162-64 (6th Cir. 1990), the Sixth Circuit explained that the "future confinement" being challenged in those cases involved continued physical confinement, and did not apply outside that context. Here, Simms does not challenge the validity of his federal conviction, but merely the BOP's future execution of the resulting federal sentence. Because success in Simms's petition would not result in him being relieved from ...

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